Haryana

Ambala

CC/388/2016

Anju Rani - Complainant(s)

Versus

Gen Hospital - Opp.Party(s)

Ms. Kulwinder Kaur

14 Dec 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                         Complaint No.:388 of 2016.

                                                         Date of Institution: 20.10.2016        

                                                         Date of Decision: 14.12.2017.

 

Anju Rani wife of Shri Ram Saran resident of village Kullarpur Tehsil Nariangarh District Ambala.

                                                                  

                                                                   ….Complainant.

                             Versus

 

General Hospital, Naraingarh District Ambala through its Senior Medical Officer.

                                                                   ….Opposite Party.

 

                             Complaint under Section 12 of the

                             Consumer Protection Act

 

BEFORE:             SH. D.N. ARORA, PRESIDENT.

                             SH. PUSHPENDER KUMAR, MEMBER.

                             MS. ANAMIKA GUPTA, MEMBER

 

Argued by            Sh.Vivek Sagar, Counsel for the complainant.

                             Sr.Navjot Singh, authorized representative of OP.

 

 

ORDER

 

                             The complainant has filed the present complaint with the averments that she visited OP with an intention to get herself operated for operation of sterilization/Nasbandi as she did not want further child in future because she was already having two children. On 01.07.2014 operation was performed upon her and she was discharged from the hospital. Thereafter, she started leading normal life with confidence that no further child would be born but surprisingly she got pregnant with three months fetus and it was not possible for her to quit the pregnancy. The complainant gave birth to a baby child after few days back on 01.10.2016 under the compelling circumstances for keeping the unnecessary pregnancy. The complainant is a poor lady and is unable to look after three children. There was deficiency in service on the part of OP in conducting the operation/ surgery upon her person  The complainant requested the Op for making compensation for better education and better up-bringing of the newly born child but to no avail. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C10.

2.                On notice, OP appeared and contested the complaint by filing reply wherein it has been submitted that sterilization operation of complainant was conducted on 01.07.2014 and she was fully explained the benefits and complications of the same. As per MTP Act, of 1971 termination of pregnancy of more than 12 weeks old is not allowed. She gave birth to a female child on 01.10.2016. However, at no time she was given assurance of 100% success of sterilization procedure as per terms and conditions of Family Planning. She had also taken oath, that in case of failure of this procedure she would not file any complaint/case in any court of law. It was also explained to here that in case of missed menstrual cycle after the procedure she was to report within two weeks to the hospital and a medical termination of pregnancy would be done free of costs and the operating doctor or the health facility would not be responsible. It is highly unbelievable that she was not able to tell about her pregnancy after missing of her menstrual cycle for two consecutive months. As per clause (i) of the Consent Form in case of sterilization operation is failed the Health Department would pay a compensation of Rs.30,000/- under the Family Planning Insurance Scheme of Government of India but she has not applied for the same and it has also become time barred.  There is no negligence and deficiency in service on the part of OP. Other contentions have been controverted and prayer for dismissal of the claim has been made. In evidence, the OP has tendered affidavit Annexure RA and documents Annexure R1 to Annexure R5.

4.                          Arguments advanced on behalf of both the sides have been heard and the material available on the case file has been perused very carefully.

5.  
5.  

Section 2(1)(d)of the Consumer Protection Act,1986 reads as under:-

“Consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is made within the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services  for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.

 

In the present case the complainant had taken treatment and got operated in Civil Hospital, Naraingarh without paying any fee with regard to it. Since the complainant has not paid anythingfor the same therefore, she cannot be treated as a Consumer as defined under Section 2 (1) (d) of the Act and this Forum is barred to invoke jurisdiction with regard to matter in dispute. On this point, reliance can be taken from case law titled as Punjab State Consumer Disputes Redressal Commission Chandigarh II (2012) CPJ 248 wherein Hon’ble Commission has held that Sections 2 (1) (g), 2 (1) (o), 15, Services-Birth of child in spite of tubectomy operation-Consumer Alleged deficiency in service-Compensation  claimed-District Forum dismissed complaint-Hence appeal-Free Service is not a “service” as per Act. Appellants are not consumers qua respondents.

The Op has rightly relied upon case law titled as Santosh Vs. Dr.Hemant Kansal decided on 03.12.2009 by Hon’ble State Commission Chandigarh. Hon’ble State Commission while deciding the appeal No.2916/2002/Hry/RBT/1227/2008 in para No.7 of the judgment has held as under:

 “7. Further it has been observed by Hon’ble Supreme Court in State of Haryana and others Vs. Raj Rani (2005) 7 Supreme Court Cases 22 that Childbirth inspite of a sterilization operation can occurdue to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of operation is attributable to his negligence and not otherwise. Similarly, it has been held by the Apex Court inState of Punjab Vs. Shiv Ram and others (2005) 7 SCC 1 in para D at page 3 that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of child birth.

 

Hon’ble Supreme Court has further observed that proof of negligence shall have to satisfy Bolam’s test. Cause of action for claiming compensation in failed sterilization operation arises on account of negligence of operating surgeon and not on account of child birth. Supreme Court also observed that the methods of sterilization so far known to the medical science which are most popular and prevalent are not 100 % safe and secure. In spite of operation having been successfully performed and without any negligence on the part of operating surgeon, the sterilized woman can become pregnant due to natural causes. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception inspite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be a unwanted child. Compensation for maintenance and upbringing such a child cannot be claimed.

 

Further in the present case there is no cogent and convincing evidence to show that the operating doctor was negligent in any manner while conducting the operation.Moreover in order to prove any medical negligence medical expert opinion is necessary before taking cognizance of a case involving the medical negligence. In the authority Pravin Laljibhai Vaghela Versus Dr. Binoy Palkhivala, 1996(2)CLT,249 it was held by the Hon’ble State Consumer Commission, Gujarat thatwhen no expert evidence was produced to prove medical negligence, the complaint is liable to be dismissed in the absence of any evidence that the opposite party was negligent in giving treatment. In another case Dr. H.K.Jain Versus Sunil, 2000(1),CLT,1 it was held by theHon’ble Madhya Pradesh State Consumer Commission that for proving negligence by a doctor the plaintiff has to give proof to establish the allegations and expert evidence will be necessary from a doctor  in the  same field of medicine. In the present case the complainant has neither produced any medical expert opinion nor has produced any document from which it could be gathered that she had ever appeared before the penal of experts for getting medical expert opinion on the case file. Moreover, she has also not moved any application before this Forum for getting the medical expert opinion to prove his pleadings. Hon’ble National Consumer Commissionin case titled as Dr. N.T.Subramanyam and others Versus Dr. B.Krishna Rao and another,1997(1)CLT,47 has held that a doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable Medical care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. The case laws relied upon by learned counsel for the complainant i.e. Post Graduate Institute of Medical Education & Research and Ors Vs. Amit Sarkar and Ors, 2015(3) RCR (Civil) Page no. 410 & Apex  Court  judgment 2000(2) RCR (Civil)  Page 739 title as State of Haryana Vs. Smt. Santra. are not applicable to the case in hand

6.                          Keeping in view the above mentioned facts and circumstances the complainant also does not fall within the ambit of consumer and even following the observations made in the above citations we have no doubt in our mind in holding that the complainant has miserably failed to prove any kind of medical negligence/deficiency in service on the part of OP and as such she is not entitled to any compensation. Accordingly, the complaint of the complainant is hereby dismissed, leaving the parties to bear their own cost. A copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.

 

ANNOUNCED ON:      14.12.2017

                        

                           

(PUSHPENDER KUMAR)     (ANAMIKA GUPTA)      (D.N.ARORA)

MEMBER                                 MEMBER                      PRESIDENT